American Civil Liberties v. Department of Defense, 04 Civ. 4151(AKH).

• Citation: 389 F.Supp.2d 547
• Decision Date: 29 September 2005
• Docket Number: No. 04 Civ. 4151(AKH).,04 Civ. 4151(AKH).
• Parties: AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

389 F.Supp.2d 547

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. DEPARTMENT OF DEFENSE, et al., Defendants.

No. 04 Civ. 4151(AKH).

United States District Court, S.D. New York.

September 29, 2005.

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Lawrence S. Lustberg, Demetrios Christos, Batsides, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for American Civil Liberties Union.

Heather Kirsten McShain, Peter M. Skinner, Sean H. Lane, U.S. Atty's Office SDNY, New York City, Center for Constitutional Rights, Inc.

Sean H. Lane, U.S. Atty's Office, New York City, for Department of Homeland Security, Central Intelligence Agency.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PARTIAL SUMMARY JUDGMENT

HELLERSTEIN, District Judge.

The American Civil Liberties Union and other plaintiffs have demanded that the government produce relevant documents concerning the "treatment of Detainees in United States custody," the "death of Detainees in United States custody," and the "rendition of Detainees and other individuals" to countries known to employ torture. Plaintiffs' demands under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, were first made on October 7, 2003. The government, after being inattentive for many months to the obligations imposed on it by FOIA, see Am. Civil Liberties Union v. Dep't of Def., 339 F.Supp.2d 501 (S.D.N.Y.2004) ("Opinion and Order of September 15, 2004"), has made large, but not complete, production, reviewing and turning over thousands of documents from various of its agencies. The present motions relate to documents claimed to be possessed by, or of concern to, two government agencies, the Department of Defense ("DOD") and the Central Intelligence Agency ("CIA").

More than one year ago, on August 16, 2004, in order to facilitate the government's processing of documents, plaintiffs created a priority list of enumerated documents (the "August 16, 2004 List"). The priority list was a subset of previous demands that plaintiffs most wished to be produced and which, based on public references to such documents, plaintiffs believed the government could readily process. The priority list focused on specifically identified records, such as records "provided by defendant agencies to Congress, members of Congress, or congressional committees," or "discussed or identified in the media." My Opinion and Order of September 15, 2004 set out an expedited procedure with respect to the August 16, 2004 List.¹ Specifically, the government was required to produce the documents responsive to the List, or provide a declaration showing that an exemption against production applied, see Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), following which there would be motions for partial summary judgment to resolve disputes regarding documents claimed to be exempt.

Initially, defendant CIA took the position that it did not have to search its operational files and identify responsive documents, claiming an exemption by statute. See CIA Information Act, 50 U.S.C. § 431. However, the CIA Information Act itself provides exceptions to the exemptions from FOIA that it affords the CIA, and I held that since the agency had already conducted a search pursuant to an investigation of its Inspector General into allegations of improprieties of CIA operatives in Iraq, the statute by its explicit terms no longer exempted the CIA from its obligations under FOIA to search. I ordered the CIA to search its investigative files for responsive documents, and either to produce them or show them to be exempt. See Am. Civil Liberties Union v. Dep't of Def., 351 F.Supp.2d 265 (S.D.N.Y.2005) (Opinion and Order of February 2, 2005, modified, April 18, 2005).²

Against this backdrop, plaintiffs and defendants both moved for summary judgment on issues arising from plaintiffs' priority list of August 16, 2004. "Summary judgment is the procedural vehicle by which most FOIA actions are resolved." Jones-Edwards v. Appeal Bd. of the Nat'l Sec. Agency Cent. Sec. Agency, 352 F.Supp.2d 420, 423 (S.D.N.Y.2005) (citing Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir.1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.")).

This Opinion addresses five categories of issues that are disputed: (1) the DOD's withholding of reports and documents relating to the International Committee of the Red Cross; (2) documents relating to the DOD's interrogation activities; (3) the CIA's refusal to confirm or deny the existence or possession of certain documents; (4) the CIA's representation, with regard to documents relating to a request by former CIA Director Tenet to Secretary of Defense Rumsfeld that a certain Iraqi suspect be held at a high-level detention center and not be identified, that there are no meaningful, reasonably segregable portions of the documents that are not exempt from production; and (5) the DOD's withholding of photographs taken by Joseph Darby at Abu Ghraib prison and provided to the Army's Criminal Investigative Division. This written decision expands on, and supersedes, the rulings and observations that I made at the public and in camera oral arguments held on May 26, May 31, August 15, and August 30, 2005.

The Applicable Legal Principles

As the Second Circuit recently observed, "FOIA was enacted in order to `promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.'" Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir.2005) (alteration in original) (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.1999)). Clearly, however, the policy of open disclosure is not the only policy to consider. FOIA itself recognizes this, and provides nine exemptions against disclosure. It is the burden of the relevant agency to show that an adequate search was made, and that a "specific, enumerated exemption [] set forth in" FOIA authorizes it to withhold a document from production. Id.; Carney v. DOJ, 19 F.3d 807, 812 (2d Cir.1994); see also Tax Analysts v. IRS, 410 F.3d 715, 719-20 (D.C.Cir.2005) (reiterating that the requirement for granting summary judgment to an agency is that the "agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact"). The showing must meet an exacting standard, since, "[c]onsistent with FOIA's purposes, these statutory exemptions are narrowly construed." Nat'l Council of La Raza, 411 F.3d at 355-56 (citing Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001)).

My inquiry with respect to the documents in issue is particularly acute. Our nation has been at war with terrorists since their September 11, 2001 suicide crashes into the World Trade Center, the Pentagon, and a field in Shanksville, Pennsylvania, killing thousands and wounding our nation in ways that we still cannot fully recount — indeed, we were at war with terrorists since well before that event. American soldiers are fighting and dying daily in Afghanistan and Iraq. The morale of our nation is a vital concern and directly affects the welfare of our soldiers. How then to deal with the commands of FOIA and the strong policy it reflects "to promote honest and open government," "to assure the existence of an informed citizenry," and "to hold the governors accountable to the governed"? Of course, national security and the safety and integrity of our soldiers, military and intelligence operations are not to be compromised, but is our nation better preserved by trying to squelch relevant documents that otherwise would be produced for fear of retaliation by an enemy that needs no pretext to attack?

FOIA places a heavy responsibility on the judge to determine "de novo" if documents withheld by an agency are properly withheld under an exemption and, if necessary, to examine the withheld documents "in camera":

On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

5 U.S.C. § 552(a)(4)(B); see also Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C.Cir.2001) ("[I]t is precisely because FOIA's terms apply government-wide that we generally decline to accord deference to agency interpretations of the statute, as we would otherwise do under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).").

An agency's burden, although high, is not impractical. It suffices if the agency shows, by "[a]ffidavits or declarations supplying facts," that the agency has conducted a "thorough search" for responsive documents, and has given "reasonably detailed explanations why any withheld documents fall within an exemption." Carney, 19 F.3d at 812; see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973) (requiring as justification for claims of exemption "a relatively detailed analysis in manageable segments" and outlining...